JUDGMENT

R.P.Gupta, Member. - The following two questions are referred for opinion to this Larger Bench:

1. Whether the limitation for restitution application under Section 144, C.P.C. is one year or 3 years.

2. Whether the defendant who was dispossessed in execution of decree before cancellation operation can be put in possession after the consolidation operation under Section 144, C.P.C. though consolidation proceedings were decided against the defendant.

The brief facts of the case out of which the above two questions arose, are as follows:-

1. Karim Bux the father of the plaintiff-appellant filed a suit under Section 209 of U.P.Z.A. and L.R. Act on October 23, 1958 against Abdul Gafoor. The suit was dismissed on June 15, 1959 by the trial court. On appeal the judgment of the trial court was reversed and suit was decreed by the Addl. Commissioner on July 6, 1960. In pursuance of the decree, the plaintiff obtained possession on May 20, 1961. Abdul Gafoor the defendant filed second appeal No. 13 of 1960-61 before the Board of Revenue which was dismissed on July 26, 1962. Against this judgment review petition No. 21 of 1962-63 was filed which was dismissed by the Board of Revenue on July 8, 1963. Then the defendant Abdul Gafoor filed writ petition No. 4678 of 1963 in the High Court which was allowed by the Hon'ble High Court on July 27, 1966 and case was remanded to the Ist appellate court for re-hearing the appeal. In the mean-time during the pendency of the writ petition the village has come under consolidation. On April 16, 1965 consolidation Officer decided the case in favour of the plaintiff against which the appeal was dismissed by S.O.c. on August 2, 1965 and the revision was dismissed by the D.D.C. on January 28, 1966. Against the order of the D.D.C. no writ petition was filed by the defendant Abdul Gafoor. After the remand of the case by the High Court on July 27, 1966 the suit was withdrawn by the plaintiff on September 2, 1969. The present plaintiff-appellant are son of Karim Bux who were substituted in his place after his death. Even before withdrawal of the suit by the plaintiffs the defendant Abdul Gafoor applied on July 1, 1969 for restitution of possession under Section 144, C.P.C. This application was allowed by the trial court on March 20, 1970 the appeal filed by the plaintiffs against this order was dismissed by the Addl. Commissioner on January 6, 1972 against which order the second appeal is filed by the plaintiffs Abdul Raheem etc.

2. The learned counsel for the parties argued at length and relied on various rulings in support of their contentions. According to the learned counsel for the defendant respondent Abdul Gafoor the limitation for giving restitution application under Section 144, C.P.C. was 12 years while according to the learned counsel for the plaintiff appellant, it was only one year, the present case being one under Section 209 of U.P.Z.A. and L.R. Act. According to deliver back possession to the defendant irrespective of the fact that consolidation had taken place in village or not while according to the learned counsel for the plaintiff appellant restitution is not possible after the final decisions of the title by the consolidation courts.

3. Let us examine the correct position in regard to the question involved.

4. No specific period of limitation is provided for application under Section 144 C.P.C. on which basis, it is said that the limitation will be governed by the residuary clause of Limitation Act and as such it will be 3 years. On the other hand it is said that the restitution application is nothing but execution application and as such the limitation will be the same which is provided for executing the decree for possession.

5. In Mahijibhai Mohan Bhai Baret v. Patel Mani Bhai Gokal Bhai, A.I.R. 1965 S.C. 1477 : 1965 A.L. 525 it was held per Majority (Sarkar, J. dissenting) "An application for execution of a decree and therefore, such application is governed by Article 182 Limita